This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-608

 

Wells Fargo Bank of Minnesota,

National Association,

Respondent,

 

vs.

 

Georgina Yvonne Stephens,

Appellant.

 

Filed September 17, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Ramsey County District Court

File No. C0018206

 

 

Rebecca F. Schiller, Reiter & Schiller, 6 West Fifth Street, St. Paul Building, 7th Floor, St. Paul MN 55102 (for respondent)

 

Georgina Y. Stephens, 875 Laurel Avenue, St. Paul, MN 55104 (appellant pro se)

 

 

Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

 

U N P U B L I S H E D†† O P I N I O N

 

GORDON W. SHUMAKER, Judge

††††††††††† After appellantís bankruptcy case was discharged and closed, respondent bank sued appellant to enforce its security interest and repossess her automobile when she defaulted on a second loan.† The district court denied appellantís summary-judgment motion.† We affirm.

FACTS

 

††††††††††† This appeal arises out of a replevin action in which respondent Wells Fargo Bank seeks to repossess appellant Georgina Stephensís car under a security interest the bank holds.†

In April 1997, appellant signed a motor-vehicle installment-loan contract calling for monthly payments.† Appellant filed for Chapter 7 bankruptcy in August 1998, and the vehicle was included in the list of property claimed as exempt.† The bankruptcy was discharged in November 1998, and the case closed in January 2000.

In April 2001, respondent notified appellant that, because the bankruptcy case was closed, respondent intended to proceed against the vehicle if timely payments were not made on her loan account.† The notice also stated that respondent was not attempting to collect a debt, but would ďliquidate the CollateralĒ in order to satisfy appellantís default.† Respondent claims that as of April 29, 2001, appellant had defaulted on the loan payments.† Appellant, however, claims that she had entered into an agreement with respondent setting her amount due to be less than the amount indicated in respondentís records.† Appellant claims that she paid this agreed-upon amount and therefore satisfied her obligation on any unpaid balance.† Whether an agreement existed and whether she satisfied her obligation is in dispute.

Respondent filed its replevin action on September 5, 2001, and scheduled a hearing for October 29, 2001.† After respondent filed its action, appellant moved the district court to dismiss the case for lack of personal and subject-matter jurisdiction, insufficiency of process, and failure to state a claim upon which relief can be granted.† The district court addressed the jurisdictional issues as well as respondentís replevin action at the October 2001 hearing.† The court entered its order on December 4, 2001, finding that there was sufficient process and that the court had personal and subject-matter jurisdiction.†

The only remaining issue to be addressed was appellantís motion to dismiss for failure to state a claim, which the court heard in January 2002.† At this hearing, the court also permitted respondent to orally amend the complaint, which had erroneously sought money damages from appellant, and respondent clarified that all it was seeking was to recover the vehicle under its security interest for unpaid debt.† The court denied appellantís motion to dismiss (which became a motion for summary judgment because matters outside of the pleadings were introduced) in an order dated February 21, 2002.† It is from this order denying appellantís summary-judgment motion that appellant now appeals.† Respondent challenges the propriety of the appeal, arguing that the appeal was untimely.

D E C I S I O N

I.

The general rule is that a district courtís order denying a motion for summary judgment is not appealable unless the district court certifies the question as important and doubtful.† See Minn. R. Civ. App. P. 103.03(h).† Here, the district court did not certify any question.† An exception to the general rule occurs when the motion to dismiss is based on subject-matter jurisdiction.† McGowan v. Our Saviorís Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995).†

If the district court here lacks jurisdiction over the subject matter, no purpose is served by putting the parties or the court through the rigors of trial before that determination is made.

 

Id.

††††††††††† In the district courtís order dated December 4, 2001, the court concluded that it had personal and subject-matter jurisdiction.† In the district courtís order dated February 21, 2002, the district court denied appellantís motion for summary judgment, concluding that there were unresolved issues of material fact.

But for appellantís challenge to subject-matter jurisdiction, none of the issues that appellant raises falls within the exceptions to the general rule that an order denying a summary-judgment motion is not appealable.† See, e.g., Engvall v. Soo Line R.R., 605 N.W.2d 738, 742-43 (Minn. 2000) (noting that order denying summary-judgment motion based on lack of personal jurisdiction or governmental immunity is immediately appealable as exception to the general rule).† Because appellant challenges the district courtís subject-matter jurisdiction within the context of the denial of her summary-judgment motion, the courtís order is immediately appealable.†

II.

††††††††††† Respondent challenges the propriety of this appeal, arguing that the appeal is untimely because the jurisdictional issue was determined in the district courtís December 2001 order and that the denial of summary judgment in the February 2002 order was not based on lack of subject-matter jurisdiction.†

Respondent first argues that the time to appeal the December 4, 2001 order expired on or about February 4, 2002.† The current appeal was filed April 12, 2002.† Unless otherwise provided by statute, an appeal may be taken from an appealable order ďwithin 60 days after service by any party of written notice of its filing.Ē† Minn. R. Civ. App. P. 104.01.†

There is no evidence in the district court file that any party served a written notice of filing the district courtís order, as required to limit the time for appeal under Minn. R. Civ. App. P. 104.01, subd. 1.† The language in the district courtís order, providing that mailing to counsel would constitute ďnotice of * * * entry [of the order] for all purposes,Ē was not effective to limit the time for appeal.† Because neither party served written notice of the filing of the order, the time to appeal the December 4, 2001 order has not expired, which makes an appeal from the December 2001 order timely.† See, e.g., Curtis v. Curtis, 442 N.W.2d 173, 176 (Minn. App. 1989) (determining that because no notice of filing was served, time limit for appeal never started running for any order).

††††††††††† However, respondent also argues that the denial of summary judgment in the February 2002 order, from which appellant states this appeal arises, was not based on subject-matter jurisdiction.† We disagree.†

Appellantís original motion to dismiss was scheduled for January 2002 and included the challenges to subject-matter jurisdiction.† Immediately preceding appellantís notice of motion, however, respondent had scheduled a replevin motion for a hearing in October 2001.† The courtís December 2001 order indicates that the arguments before the court included personal and subject-matter jurisdiction as well as respondentís replevin motion.† The district court noted that the replevin action could not be heard unless the court also analyzed whether it had jurisdiction.† Therefore, all that remained for the court to hear at the January 2002 hearing on appellantís original motion to dismiss was the rule 12 motion to dismiss for failure to state a claim.†

Because the subject-matter jurisdiction issue arises out of appellantís original motion to dismiss, part of which was addressed and resolved in the district courtís December 2001 order, the issue of subject-matter jurisdiction is timely addressed in this appeal.† See, e.g., Konkel v. Fort, 245 Minn. 535, 536, 73 N.W.2d 613, 614 (1955) (appeal from a judgment brings up for review only prior orders and rulings which result in the judgment).† And there was sufficient notice of the issues to be litigated on appeal.† See Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) (despite civil rules of appellate procedure, which require notice of order from which appeal is taken, notices are to be liberally construed in favor of their sufficiency).† Because notices of appeal are to be liberally construed in favor of their sufficiency, the issue of the district courtís subject-matter jurisdiction is properly before this court.† See id. at 195-96.

III.

Appellant challenges the district courtís subject-matter jurisdiction, arguing that she was prejudiced when the district court allowed respondent to amend its complaint and that the district court did not have authority to overrule the bankruptcy courtís order.†

ďA party may amend a pleading once as a matter of course at any time before a responsive pleading is served * * * .Ē† Minn. R. Civ. P. 15.01.† A party may otherwise amend a pleading by leave of court, ďand leave shall be freely given when justice so requires.Ē† Id.†† A district courtís decision allowing a party to amend its complaint is within the district courtís discretion, and the decision will not be disturbed absent an abuse of that discretion.† Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. App. 2001), review denied (Minn. Oct. 6, 2001).

Respondentís original complaint sought immediate possession of appellantís vehicle, or, in the alternative, judgment against appellant for the alleged amount remaining on the loan, plus interest, costs, disbursements, and attorney fees.† During the January 2002 hearing, however, respondent clearly stated on the record that the complaint was in error and the only relief respondent was seeking was possession of the vehicle and not any type of monetary damages.† Respondent conceded that the bankruptcy extinguished any type of personal liability under the vehicle loan contract.† What survived the bankruptcy was the collateral on the loan and respondentís right to repossess the collateral in the event of a default.† Respondent also clearly stated in its October 2001 responsive memorandum that it did not seek any type of monetary judgment against appellant.† The district court approved the amendment.† Appellant did not file her responsive pleading until March 29, 2002.† Appellant was not prejudiced, and the district court did not abuse its discretion in allowing respondent to amend the complaint.

Finally, we conclude that the district court properly determined that it had subject-matter jurisdiction over the in rem proceeding.† A bankruptcy ďdischarge operates as an injunction against any attempt to collect a debt as a personal liability of the debtor.Ē† Harmon v. United States, 101 F.3d 574, 579 (8th Cir. 1996) (quotation omitted).† However, bankruptcy discharge does not generally affect a creditorís right to collect a debt in rem by foreclosing on secured property.† Id.† In an in rem action, the bankruptcy court has no summary jurisdiction over such property.† Nicklaus v. Bank of Russellville, 336 F.2d 144, 146 (8th Cir. 1964).†

Appellant conceded at the January 2002 hearing that the security interest survived the bankruptcy.† Because respondent sought to foreclose on an unpaid debt by repossessing the vehicle, we conclude that the district court had subject-matter jurisdiction.† Although appellant claims that she paid the full amount required to satisfy any outstanding debt, the district court had subject-matter jurisdiction to determine that whether her debt was satisfied raised a question of fact.† Accordingly, the district court properly denied appellantís motion for summary judgment.

Affirmed.